October 2018

10/31/2018

In the next session of my Catholic Social Thought and the Law seminar, we will be reading Gaudium et spes(literally “joy and hope,” but formally referred to as The Pastoral Constitution on the Church in the Modern World). GS was one of the four “constitutions” promulgated in Vatican II. As a pastoral document, it presents Catholic social thought that builds on the earlier documents but also adds a more explicitly theological and scriptural basis for CST.

Basic Themes

GS is a dauntingly long document (68 pages exclusive of footnotes in our textbook). It touches on a remarkably wide range of issues, including:

They identified the family as a kind of school of deeper humanity. They lauded the increasing consciousness among people that they themselves are the authors and artisans of the culture of their community and declared that it is now possible to free most of humanity from the misery of ignorance. They bemoaned the fact that at the very time when the development of economic life could mitigate social inequalities, it is often made to embitter them; or, in some places, it even results in a decline of the social status of the underprivileged and in contempt for the poor. They cautioned that economic development must not be left to the judgment of a few. or of groups possessing too much economic power, or of the political community alone, or of certain more powerful nations. They recalled the command of the Church Fathers to Feed the man dying of hunger, because if you have not fed him, you have killed him and called for the support of individuals or peoples with the aid by which they may be able to help and develop themselves. They urged that investments must be directed toward procuring employment and sufficient income for the people both now and in the future.

Informing the Church’s pastoral response to these issues are three recurring themes: (1) human dignity, (2) the common good, and (3) the unity of the human race.

These themes reflect CST’s universal aspirations. Pope Paul VI had advocated that the Church engage in dialogue across four concentric circles:

The outer circle would include all human beings, including unbelievers, and the other three refer to believers in non-Christian religions, other Christians, and finally dialogue among Catholics themselves.

GS situates that dialogue relative to the Church’s primary function as set forth in the Great Commission:

Christ, to be sure, gave His Church no proper mission in the political, economic or social order. The purpose which He set before her is a religious one. But out of this religious mission itself come a function, a light and an energy which can serve to structure and consolidate the human community according to the divine law.

Put another way, CST is an authentic part of the Church’s prophetic witness to all mankind.

Methodologies

GS also reflects the two basic methodologies of CST. First, the trilogy of “see, judge, act.” Second, it speaks of “both and” rather than “either or.”

We see the latter, for example, in the discussion of human nature. Man is both a free individual and a social being. Hence, we are both individuals and members of a community. (32)

GS is perhaps the strongest affirmation of the liberty of the individual that we have seen so far in our examination of CST:

… there is a growing awareness of the exalted dignity proper to the human person, since he stands above all things, and his rights and duties are universal and inviolable. Therefore, there must be made available to all men everything necessary for leading a life truly human, such as food, clothing, and shelter; the right to choose a state of life freely and to found a family, the right to education, to employment, to a good reputation, to respect, to appropriate information, to activity in accord with the upright norm of one's own conscience, to protection of privacy and rightful freedom even in matters religious. (26)

One assumes this new emphasis was a product of the then quite recent experience with fascism and the ongoing threat of communism, both of which denied the liberty of the individual.

Note, however, that the communitarian element of CST is present even here in the emphasis on positive rights. Unlike the libertarian conception of human freedom, which emphasizes negative rights, CST embraces the concept of man having rights that oblige society to provide certain goods and services to its members.

The both and of autonomy and community is reinforced just a few paragraphs later:

Profound and rapid changes make it more necessary that no one ignoring the trend of events or drugged by laziness, content himself with a merely individualistic morality. It grows increasingly true that the obligations of justice and love are fulfilled only if each person, contributing to the common good, according to his own abilities and the needs of others, also promotes and assists the public and private institutions dedicated to bettering the conditions of human life. Yet there are those who, while possessing grand and rather noble sentiments, nevertheless in reality live always as if they cared nothing for the needs of society. Many in various places even make light of social laws and precepts, and do not hesitate to resort to various frauds and deceptions in avoiding just taxes or other debts due to society. Others think little of certain norms of social life, for example those designed for the protection of health, or laws establishing speed limits; they do not even avert to the fact that by such indifference they imperil their own life and that of others. (4)

“You shall love the Lord, your God, with all your heart, with all your soul, and with all your mind. This is the greatest and the first commandment. The second is like it: You shall love your neighbor as yourself. The whole law and the prophets depend on these two commandments.” (Matthew 22:37-40)

Part I

GS is divided into two major parts. Part I is a deeply theological treatment of the human situation. It is expressly laying the groundwork for linking the various aspects of Catholic teaching on social justice to “their divine source” and to commend those values that “stem from endowments conferred by God on man.” (11)

Part I does so by treating at some length the theological grounding of four basic principles: (1) the dignity of the human person; (2) the community of mankind; (3) human activity throughout the world and (4) the mission of the Church in the modern world. As David Hollenbach points out, this Part stands in stark comparison with the papal encyclicals issued by all of the popes between Leo XIII and John XXIII. Those earlier documents “were almost exclusively framed in concepts and language of the natural law ethic.” (Himes at 373) They lacked “careful consideration of the biblical, Christological, eschatological, or ecclesiological basis of the Church’s role” in achieving social justice. (Id.) To be sure, as Hollenbach makes clear, the Church continues to speak to the universal community of mankind and so continues to rely on arguments from human experience, but in doing so the Church is also witnessing to its faith.

I take a personal interest in sections 22 and 24 of Part I. It is saidthat “Pope John Paul II … cited sections 22 and 24 of Gaudium et Spesmore often than he … cited any other Vatican II document.” As regular readers will recall, I came to Catholicism mainly because of my immense admiration for JPII and deep appreciation of his encyclicals on work and economics. So the sections he valued commanded my attention.

Section 22 deals with Christ as the second (and final) Adam.

As an innocent lamb He merited for us life by the free shedding of His own blood. In Him God reconciled us to Himself and among ourselves; from bondage to the devil and sin He delivered us, so that each one of us can say with the Apostle: The Son of God "loved me and gave Himself up for me" (Gal. 2:20). By suffering for us He not only provided us with an example for our imitation, He blazed a trail, and if we follow it, life and death are made holy and take on a new meaning.

As one commentator observes, JPII invokes this passage to explain the profound question of human suffering:

Through Christ and in Christ, the riddles of sorrow and death grow meaningful. Apart from His Gospel, they overwhelm us.” … It is above all in suffering and death that the questions about life’s meaning arise, questions that only Christ can answer.

Section 22 also speaks to the eternal question of who shall be saved:

Pressing upon the Christian to be sure, are the need and the duty to battle against evil through manifold tribulations and even to suffer death. But, linked with the paschal mystery and patterned on the dying Christ, he will hasten forward to resurrection in the strength which comes from hope.

All this holds true not only for Christians, but for all men of good will in whose hearts grace works in an unseen way. For, since Christ died for all men, and since the ultimate vocation of man is in fact one, and divine, we ought to believe that the Holy Spirit in a manner known only to God offers to every man the possibility of being associated with this paschal mystery.

The Spirit blows everywhere, calling everyone to salvation in Christ, as GS 22 explains. This passage maps a vital middle ground between two well-known extremes, respectively known as exclusivism and pluralism, the first of which says that unless a person expressly acknowledges Jesus Christ as their God and savior they cannot be saved, which seems to be hard on those who have never even heard the holy name of Jesus, while the second says that there are many paths to God and that the way of Christ is only one of them, which contradicts the Christian conviction that Christ is the one savior of the world.

The council carefully steered between those extremes, and said: “since Christ died for all, and since all ... are in fact called to one and the same destiny, which is divine, we must hold that the Holy Spirit offers to all the possibility of being made partners, in a way known to God, in the paschal mystery” (GS 22). Yes, there is only one way of salvation, namely through the paschal mystery of Jesus Christ, and the Church knows and celebrates that mystery regularly in its sacraments, as GS 22 says, incidentally echoing SC 6, but, in ways known only to God, every single human being is invited by the Spirit to participate in that same mystery and so to find salvation. It follows that only God can judge what the response of each one has been, but we might perhaps say that a certain likeness to Christ in terms of a life of love and self-sacrifice for others would be likely signs of a salvific response to the invitation of the Spirit, even if the person concerned had never even heard of Christ.

Turning to section 24, we come to the a restatement of the great teaching discussed above on love of neighbor.

God, Who has fatherly concern for everyone, has willed that all men should constitute one family and treat one another in a spirit of brotherhood. For having been created in the image of God, Who "from one man has created the whole human race and made them live all over the face of the earth" (Acts 17:26), all men are called to one and the same goal, namely God Himself.

For this reason, love for God and neighbor is the first and greatest commandment. Sacred Scripture, however, teaches us that the love of God cannot be separated from love of neighbor: "If there is any other commandment, it is summed up in this saying: Thou shalt love thy neighbor as thyself.... Love therefore is the fulfillment of the Law" (Rom. 13:9-10; cf. 1 John 4:20). To men growing daily more dependent on one another, and to a world becoming more unified every day, this truth proves to be of paramount importance.

Indeed, the Lord Jesus, when He prayed to the Father, "that all may be one. . . as we are one" (John 17:21-22) opened up vistas closed to human reason, for He implied a certain likeness between the union of the divine Persons, and the unity of God's sons in truth and charity. This likeness reveals that man, who is the only creature on earth which God willed for itself, cannot fully find himself except through a sincere gift of himself.

As noted above, the commandment to love one’s neighbor pervades CST. We shall return to it repeatedly.

In closing, thinking about Section 24 inevitably called to mind a famous quote by C.S. Lewis about loving your neighbor:

You are told to love your neighbor as yourself. How do you love yourself? When I look into my own mind, I find that I do not love myself by thinking myself a dear old chap or having affectionate feelings. I do not think that I love myself because I am particularly good, but just because I am myself and quite apart from my character. I might detest something which I have done. Nevertheless, I do not cease to love myself. In other words, that definite distinction that Christians make between hating sin and loving the sinner is one that you have been making in your own case since you were born. You dislike what you have done, but you don't cease to love yourself. You may even think that you ought to be hanged. You may even think that you ought to go to the Police and own up and be hanged. Love is not affectionate feeling, but a steady wish for the loved person's ultimate good as far as it can be obtained.

The U.S. Securities and Exchange Commission on Tuesday charged the former chief executive of Heartland Payment Systems Inc and his romantic partner with insider trading ahead of the payment processor's $4.3 billion takeover by Global Payments Inc .

Robert Carr, Heartland's founder and CEO, was accused of telling Katherine Hanratty in November 2015 that Global Payments had offered to buy Princeton, New Jersey-based Heartland for a premium and giving her a $1 million check with instructions to open a brokerage account and buy $900,000 of Heartland stock.

Hanratty did what Carr asked, and sold her stock for a $250,628 profit in April 2016, four months after the merger was announced, the SEC said in a complaint filed with the federal court in New Haven, Connecticut.

Apparently Hanratty was not acting as a straw man for Carr, but rather was the beneficiary of a tip (quid pro quo in return for sexual favors or maybe just a gift) from Carr, as the SEC complaint alleges:

On November 23, 2015, Hanratty emailed Carr to express her gratitude and stated “for the first time ever I feel a sense of relief knowing that I have some security.” Referring to the $1 million, Hanratty repeated that “I have done exactly what you recommended I do with it and made you the beneficiary of the account.” Carr replied via email that he was glad that she was not so stressed anymore.

So far all of this seems pretty run of the mill. Slam dunk for the SEC is the phrase that comes to mind. And, indeed, Fox reported that Hanratty settled the SEC charges and paid disgorgement of her profits and a $250,000 fine.

But here's where it gets interesting. Bloomberg is now reporting that:

Heartland Payment Systems LLC is suing its former CEO’s girlfriend for making insider trades based on tips he passed on about an upcoming merger. ...

In fact, Heartland is suing both Hanratty and Carr. Count I of the complaint alleges that Carr breached his Delaware corporate law fiduciary duty by disclosing the information to Hanratty. Count 2 alleges that Hanratty added and abetted Carr's breach in violation of state corporate law.

This is a very unusual suit. It's rare that an issuer sues an employee (even a former employee) for alleged insider trading. Not unheard of, but rare. As Richard Booth explains:

So why is it that issuers seldom seek disgorgement on their own? It is possible that the practice is common and quietly handled, but I doubt it. One obvious reason that issuers do not often sue their own for insider trading is an inherent conflict of interest. It is often the case that the culprits have the power to decide whether the corporation should sue. Still, that does not explain why there are few derivative actions in connection with insider trading. On the other hand, it appears that the number of derivative actions brought in tandem with securities fraud class actions has been increasing in recent years. Another somewhat less obvious reason for the disinclination of issuers to go after inside trading is that it might often amount to an admission that the company failed to disclose material information in a timely fashion and might trigger the filing of a securities fraud class action. Thus, as I have argued elsewhere, the disproportionate threat of securities fraud class actions and their potentially devastating collateral consequences may prevent publicly traded companies from self-policing.

The fact that Heartland had had a change of ownership may be pertinent. The new owners may have had a beef with Carr.

So what will Hearland have to prove to win against Hanratty? “The elements of a claim for aiding and abetting a breach of a fiduciary duty are: (1) the existence of a fiduciary relationship, (2) the fiduciary breached its duty, (3) a defendant, who is not a fiduciary, knowingly participated in a breach, and (4) damages to the plaintiff resulted from the concerted action of the fiduciary and the non-fiduciary.” Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., 817 A.2d 160, 172 (Del. 2002)

The plaintiff must show that: “1) the corporate fiduciary possessed material, nonpublic company information; and 2) the corporate fiduciary used that information improperly by making trades because she was motivated, in whole or in part, by the substance of that information.”

My friend the late Bill Stuntz was one of the most faithful men I have ever had the privilege of knowing and also one of the greatest legal scholars of my generation (criminal law). Several times I heard him discuss with great insight the question of what it means to be a Christian and a lawyer (or law professor). In a brilliant book review essay, Bill observed that:

Christianizing the legal profession might have a much larger effect on law practice than on law. To see why, consider Jesus's occupation for most of his adult life: he made tables, or whatever it was that ancient Middle Eastern carpenters made.Were the tables he made distinctive? Did he use different wood or a different manufacturing process than other carpenters used? The likely answer is no--at least, the gospel accounts offer no reason to think otherwise.

Now change the question: focus less on the noun and more on the verb. Instead of asking whether Jesus's tables were different, ask whether he made the tables differently--whether his motivations and attitudes toward his work, the ways he treated his customers and his coworker, differed from the practices of other carpenters. The answer to that question is surely yes.

That insight was called to mind by my preparation today for the next session of my Catholic Social Thought and the Law seminar. We will be reading Gaudium et spes (literally “joy and hope,” but formally referred to as The Pastoral Constitution on the Church in the Modern World).

They are mistaken who, knowing that we have here no abiding city but seek one which is to come, think that they may therefore shirk their earthly responsibilities. For they are forgetting that by the faith itself they are more obliged than ever to measure up to these duties, each according to his proper vocation. Nor, on the contrary, are they any less wide of the mark who think that religion consists in acts of worship alone and in the discharge of certain moral obligations, and who imagine they can plunge themselves into earthly affairs in such a way as to imply that these are altogether divorced from the religious life. This split between the faith which many profess and their daily lives deserves to be counted among the more serious errors of our age. Long since, the Prophets of the Old Testament fought vehemently against this scandal and even more so did Jesus Christ Himself in the New Testament threaten it with grave punishments. Therefore, let there be no false opposition between professional and social activities on the one part, and religious life on the other. The Christian who neglects his temporal duties, neglects his duties toward his neighbor and even God, and jeopardizes his eternal salvation. Christians should rather rejoice that, following the example of Christ Who worked as an artisan, they are free to give proper exercise to all their earthly activities and to their humane, domestic, professional, social and technical enterprises by gathering them into one vital synthesis with religious values, under whose supreme direction all things are harmonized unto God's glory.

Secular duties and activities belong properly although not exclusively to laymen. Therefore acting as citizens in the world, whether individually or socially, they will keep the laws proper to each discipline, and labor to equip themselves with a genuine expertise in their various fields. They will gladly work with men seeking the same goals. Acknowledging the demands of faith and endowed with its force, they will unhesitatingly devise new enterprises, where they are appropriate, and put them into action. Laymen should also know that it is generally the function of their well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city; from priests they may look for spiritual light and nourishment. Let the layman not imagine that his pastors are always such experts, that to every problem which arises, however complicated, they can readily give him a concrete solution, or even that such is their mission. Rather, enlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the layman take on his own distinctive role.

I wonder what Bill would make of that passage. I think he would agree with much of it. I once heard him say that Jesus doubtless took pleasure and an appropriate amount of pride in his work as a carpenter. He doubtless strived to master his vocation. Bill thus would certainly have agreed with the argument that we "should rather rejoice that, following the example of Christ Who worked as an artisan, [we] are free to give proper exercise to all their earthly activities and to [our] humane, domestic, professional, social and technical enterprises."

I wonder, however, if Bill would have agreed with the statement that "it is generally the function of [the laity's well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city." To no profession is the Church here speaking more directly that to our profession as lawyers. Yet, as I read Bill's work, he likely would be somewhat skeptical about the Church's statement:

People fear the claim that right answers exist--that God is God, that he is sovereign, that Christ's ownership of all time and space is total. Those are strong claims, and they are not readily susceptible to secular argument. The fear makes sense, though, only if another claim follows: that the speaker knows--really knows--what all the right answers are. The second claim does not follow from the first. The proposition that God's agenda governs (the idea for which Scalia was castigated) does not entail the proposition that Christians know what that agenda is. Indeed, for Christians the real implication is nearly the opposite. My conclusions are suspect because the reasoning that produces them is tainted by my sin. My faith makes me less confident about my views, legal and otherwise, not more so. (1726)

I assume Bill would have doubts about the extent to which we can discern "the divine law" well enough to inscribe it into positive human law. And I am confident that he would argue that, even if we could do so, immorality and illegality are not coextensive:

So the positive law can forbid only a small fraction of what the moral law forbids, if the moral law is seen in Christian terms. Jesus made this clear by defining murder as anger84 and adultery as lust.85 A decent society could aspire to punish all murder, but all anger? Perhaps, in some imaginable society (though certainly not ours), law enforcers could punish adultery while avoiding selective prosecution. But not lust. (1737)

...

The point is not that morals and law don't mix. They plainly do. Rather, the point is that when morals are contested--when the populace is divided about the relevant rights and wrongs--the side that gets its hands on the law's weapons often finds that those weapons backfire. Backlashes against this kind of legal moralism are not the exception in American history. They are the rule.

That pattern suggests that moralists should usually target the culture instead of the law. (1739-40)

...

Law may sometimes be an effective moral teacher, though I confess to having some doubts; I suspect that law follows the culture, not the other way around. Even if I am wrong, law surely teaches best when the relevant legal norms are enforced across the board, and when the moral precepts on which those legal norms rest are widely shared. In the spheres conservative Christians tend to emphasize most--reproduction, sexuality, physician-assisted suicide--the relevant morals are not widely shared. Where that is so, agnosticism--a poor moral stance, but often a wise legal posture--may be the law's best option. (1740)

I wonder whether there is something inherently Protestant about Bill's approach to the question. (Bill was an evangelical who attended Park Street Church in Boston, a large and historic Congregational church.) I ask that because Gaudium et spes rather clearly thinks that there is a discernible Christian view, if not always an immediately obvious Christian solution.

Once upon a time, there was a great controversy at the University of California over requiring faculty to take an oath of loyalty to the United States. Now, with very little controversy, the UC effectively requires new faculty to take an oath of loyalty to diversity. The UC's latest Annual Accountability Sub-Report on Diversity explains:

Nearly all UC campuses now require that job applicants submit a“contributions to diversity” statement as a part of their application materials through UC Recruit. Campuses have refined their evaluation of such statements through the use of rubrics. Several of the Advancing Faculty Diversity programs have prioritized “contributions to diversity”credentials of candidates earlier in the search process and modeled evaluation processes that integrate this information into review of candidates’ skills, experience, expertise, and promise. ...

Nearly all campuses require applicants to submit a“Contributions to Diversity” statement. UC Berkeley has piloted new guidelines for using these statements to evaluate candidates at all levels of decision-making. ...

UC Irvine is ensuring that Contributions to Diversity statements are standard in merit reviews of established faculty.

That these statements are intended to elicit that candidate's commitment to the politically correct definitions of diversity is confirmed by a more elaborate set of instructions explaining the University of California San Diego's faculty appointment process:

The Contributions to Diversity Statement should describe your past efforts, as well as future plans to advance diversity, equity and inclusion. It should also demonstrate an understanding of the barriers facing women and underrepresented minorities and of UC San Diego’s mission to meet the educational needs of our diverse student population.

Some faculty candidates may not have substantial past activities. If such cases, we recommend focusing on future plans in your statement. However, please note that a demonstrated record of past effort is given greater weight than articulating awareness of barriers or stating future plans. A more developed and substantial plan is expected for senior candidates.

In effect, this is a loyalty oath requirement. Why? Because, as I observed previously, "I suspect 'none' would not be an acceptable answer. I also expect a detailed discussion of how one has tried to promote intellectual diversity within the academy by resisting the left-liberal hegemony would be even less acceptable." Good luck hiring anybody right of center with that screening system in place. Indeed, as Heather MacDonad observed, good luck hiring anybody apolitical:

If Albert Einstein applied for a professorship at UCLA today, would he be hired? The answer is not clear. Starting this fall, all faculty applicants to UCLA must document their contributions to “equity, diversity and inclusion.” (Next year, existing UCLA faculty will also have to submit an “equity, diversity and inclusion statement” in order to be considered for promotion, following the lead of five other UC campuses.) The mandatory statements will be credited in the same manner as the rest of an applicant’s portfolio, according to UCLA’s equity, diversity and inclusion office.

A contemporary Einstein may not meet the suggested evaluation criteria. Would his “job talk” — a presentation of one’s scholarly accomplishments — reflect his contributions to equity, diversity and inclusion? Unlikely. Would his research show, in the words of the evaluation template, the “potential to understand the barriers facing women and racial/ethnic minorities?” Also unlikely. Would he have participated in “service that applies up-to-date knowledge to problems, issues and concerns of groups historically underrepresented in higher education?” Sadly, he may have been focusing on the theory of general relativity instead. What about “utilizing pedagogies addressing different learning styles” or demonstrating the ability to “effectively teach and attract students from underrepresented communities”? Again, not at all guaranteed.

The UC-Irvine approach--apparently soon t be extended to UCLA--of requiring these statements from existing faculty is particularly troubling, at least as far as those of us who already have jobs at the UC are concerned. I am reminded of the Struggle Sessions so common in Communist China during the Cultural revolution, in which the slightest deviation from approved discourse and belief required intense self-flagellation. There is an implicit threat that failing to espouse the correct values and to implement them in some comprehensive form would result in an adverse outcome.

California State law states that a candidate's race, gender, ethnicity, or certain other personal characteristics may not be considered in the evaluation of academic appointments. Through its policies, UC has adopted a strategy for recruiting and retaining a diverse faculty by recognizing and rewarding faculty contributions to diversity and equal opportunity through their teaching, research, outreach, and service. In 2006, UC faculty and administration approved new language in the Academic Personnel Manual (APM) specifying the importance of “contributions to diversity” in faculty recruitment, review,and advancement. APM 210 1-d contains this notable language, first added in 2006 and updated after vigorous engagement by faculty in 2015:

The University of California is committed to excellence and equity in every facet of its mission. Contributions in all areas of faculty achievement that promote equal opportunity and diversity should be given due recognition in the academic personnel process, and they should be evaluated and credited in the same way as other faculty achievements. These contributions to diversity and equal opportunity can take a variety of forms including efforts to advance equitable access to education, public service that addresses the needs of California’s diverse population, or research in a scholar’s area of expertise that highlights inequalities. Mentoring and advising of students and faculty members, particularly from underrepresented and underserved populations, should be given due recognition in the teaching or service categories of the academic personnel process.

I don't think I'm being unreasonable in reading that statement as basically saying "the law doesn't let us consider certain personal characteristics, but this is how we end run that prohibition."

From University of California President's Janet Napolitano latest state of the university memo:

UC recently announced a commitment of more than $7 million annually to increase faculty diversity. We know that students’ academic performance and career aspirations are enhanced when faculty of similar backgrounds serve as role models, and we will be building on existing programs that help to ensure students on all 10 UC campuses benefit from a faculty that better reflects California’s diversity.

The funding will also support new programs and a sustained, ongoing approach to identify and cultivate talent and offer instructional programs, services and incentives that recognize the ways underrepresented groups make decisions about whether to pursue faculty careers.

You'll notice the lack of any reference to intellectual and ideological diversity. The absence of such references becomes even more pronounced when one looks at the Annual Accountability Sub-Report on Diversity. In a 20 page report, there are no references to intellectual and ideological diversity. None.

Dual class stock capital structures have long been controversial. See my article The Short Life and Resurrection of Sec Rule 19c-4. Washington University Law Quarterly, Vol. 69, Pp. 565-634, 1991. Available at SSRN: https://ssrn.com/abstract=315375.

10/22/2018

Hwang, Sunwoo and Shivdasani, Anil and Simintzi, Elena, Mandating Women on Boards: Evidence from the United States (October 13, 2018). Available at SSRN: https://ssrn.com/abstract=3265783

On September 30, 2018, California became the first US state to mandate women directors on corporate boards. The passage of this law resulted in a significant decline in shareholder value for firms headquartered in California. The decline in shareholder value is directly related to the number of female directors that firms are required to add to the board. We argue that supply-side constraints contribute to the costs imposed by the mandate. The expected costs of additional female directors are higher for firms that face a more limited director pool and for those with weak corporate governance. Our findings indicate that mandated increases in gender diversity on corporate boards are detrimental to shareholder value.

10/19/2018

A little more than two years ago, we published the Commonsense Principles of Corporate Governance. That work represented a collaborative effort – a search for common ground – by representatives of some of America’s largest corporations and institutional investors. We said then, and it is no less true today, that the long-term prosperity of millions of American workers, retirees and investors depends on the effective governance of our public companies. We hoped that our Principles would be part of a larger dialogue about the responsibilities and need for constructive engagement of those companies, their boards and their investors. We think that has been the case. Other groups have published their own works on the subject. Among them are an investor-led effort by the Investor Stewardship Group (ISG) called the Framework for U.S. Stewardship and Governance, a business-led effort by the Business Roundtable (BRT) called Principles of Corporate Governance, and a piece by the International Business Council of the World Economic Forum called The New Paradigm. ...

Today, we endorse the ISG Framework, the BRT Principles and The New Paradigm as counterweights to unhealthy short-termism. Indeed, a number of the companies and organizations represented in those efforts were also part of ours. Moreover, in light of the work of the ISG, the BRT the World Economic Forum and others, and after further reflection on our own Commonsense Principles, we decided to re-convene and revise the Principles – we call them Commonsense Principles 2.0. Ultimately, we hope that the many sets of corporate governance principles currently in circulation can be harmonized and consolidated, and reflect the combined views of companies and investors. We do worry that dueling or competing principles could impede, rather than promote, healthy corporate governance practices.

We are also today making a commitment to apply the Commonsense Principles 2.0 in our businesses – and we hope others will do so as well.

10/17/2018

Thread-So let me see if I understand this. 1991:We fight a war with Iraq in large part to save Saudi Arabia from Saddam Hussein. We leave Saddam in power, which means we have to leave troops on Arabian Peninsula to protect Saudis. Which radicalizes Osama Bin Laden.

10/16/2018

Individual Catholic bishops across the United States must renounce some of the supreme authority they have over their dioceses to allow for the creation of a new national body to investigate misconduct allegations, Chicago Cardinal Blase Cupich said.

When the U.S. bishops meet in November to consider the continuing clergy sexual abuse crisis, Cupich said the prelates "have to be very clear about an accountability procedure for accusations about bishops."

"Bishops have to, as a group, say, 'We cede our rights as bishops to have somebody else come in and investigate us,' " the cardinal told NCR. "Every bishop has to be willing to say, 'I will allow myself to be investigated by an independent group if there is an accusation against me.' "

It would be a start. But the Bishops should go on to adopt the other reform proposals I offered in my article, Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies, available at SSRN: https://ssrn.com/abstract=3249236

Events of the Summer 2018 brought the long running sexual abuse crisis in the Roman Catholic Church back onto the front pages, highlighting the role of diocesan bishops in covering up the scandal and enabling abusers. In response to these developments, the Church is again considering reforms to protect victims and punish abusers and enablers. This article proposes that the Church create a system for laity to anonymously report allegations, enact strong protections for whistleblowers, and impose a mandatory whistleblowing requirement on priests. As a 2018 Pennsylvania grand jury report demonstrates, however, the laity was reporting the abuse to the Church but the hierarchy buried those reports in secret files. The ultimate problem thus is not so much the lack of reporting, as it was the lack of action after the report. Accordingly, the article’s principal proposal is the creation of both diocesan and national disciplinary bodies led by expert lay members as the ultimate authorities in sex abuse cases. The proposal draws an analogy between these bodies and corporate audit committees and argues that a number of aspects of how audit committees function can be usefully adapted to the proposed review bodies.

Meanwhile, sauté the pancetta over medium heat in your All-Clad 10-inch D3 skillet. (You’ll notice that, as always, I am crediting you with great taste in your cookware selections.)

Add the squash to the boiling water and cook 3 minutes.

After the pancetta is cooked, transfer it to a paper towel lined plate to drain, and remove all but a tablespoon of the drippings from the pan.

Return the pan to the heat add the shallot and cook for 1 minute. Add the garlic and cook for another 30 seconds. Add the squash, salt, pepper, sage, and parsley, and cook for 1 minute. Add the cream and the nutmeg. Once the cream comes to a simmer, reduce the heat to low and mash the squash using a potato masher (I prefer that to a blender so as to retain some teaxture in the sauce). Grate in Parmesan cheese to taste.

Cook the ravioli in the pasta water for 3 and a half minutes. Transfer the ravioli to the sauce pan using a spider or slotted spoon, but do try to get some pasta water in the sauce.

Plate and top with more freshly grated Parmesan cheese.

We drank a 2013 Jayson Chardonnay (Jayson is Pahlmeyer’s second label). I was expecting a big, buttery, oaky Napa Chardonnay. What I got was a delicious, well balanced, lightly oaked wine with good acidity that made a stellar match for our meal. Stone fruits (peaches and nectarines), green apple, honey, and vanilla. Grade: 91